### No. 13771 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THEODORE A. SCHUMAN et al., Petitioners and Appellants,

THE STUDY COMMISSION OF YELLOWSTONE COUNTY et al., Respondents and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Bernard 

### W. Thomas, Judge presiding. Counsel of Record: For Appellants: Jones, Olsen and Christensen, Billings, Montana Paul G. Olsen argued, Billings, Montana For Respondents: Honorable Mike Greely, Attorney General, Helena

Helena, Montana Moulton, Bellingham, Longo and Mather, Billings,

Montana William 

### H. Bellingham argued, Eillings, Montana

Submitted: September 30, 

### 1977

CPY

. "- 

### .- ?97Q 

### Filed:

### Honorable Robert M. 

### Holter, District Judge, sitting inplace of Mr. 

### Chief Justice Haswell, delivered the Opinion of the Court.

This is an appeal from an order of the District 

### Court, Yellowstone County, affirming and declaring valid the September 14, 

### 1976, City of Billings and Yellowstone County alternative form of government elections. Pursuant to sections 16-5101 to 16-5115, R.C.P1. 

### 1947, the Yellowstone County Board of County Commissioners established theYellowstone County Study Commission (County Study Commission) and the Billings Municipal Council established the Billings Study Commission (City Study Commission). Each study commission held inexcess of 50 public meetings to examine both present and alternative forms of city and county governments. They invited public questions and suggestions. In addition, the county study cornmission held fivepublic hearings and the city study commission held four public hearings from Play, 1975 toJune, 1976, to elicit preferences as 

### tocharacteristicsof local government, views

on county-city government consolidation, and reactions to the study commissions' tentativereports. Each study commission presented a finalreport to the public. The City Study Commission distributed approximately 23,000 copies of its 

### finalreport. This report included a summary of the commission's findings, key provisions of the charter form of government which the City Study Commission proposed as an alternative to the existing city government, the entireproposed charter, a comparison between the then existing form of citygovernment and the proposed charter form, certificates establishing the then existing plan of government and the proposed charter form, and a form of officialballot. he County Study Commission distributed approximately 26,000 similar final reports offering a proposed coinmissioneradministrator charter form of county government as an alternative to the existing traditional county commission form. The cityvoters on September 14, 1976, voted 7,238 to 6,268 infavor of the proposed charter form of government to replace the mayor-council form of government. The county electors on that day, by a 9,720 to 8,776 vote, rejected the proposed charter form of county government and retained the county comission form. More than 10qualified electors of both the city and county filed a petition for judicial review on September 30, 1976, inthe DistrictCourt, Yellowstone County, pursuant to section 16-5115.15, R.C.M. 1947. The electors contested the validity of the elections and claimed section 16-5115.1, R.C.M. 1947, was unconstitutional. These issues were tried by the DistrictCourt which made findings of fact and conclusions of law affirming that the elections of September 

### 14, 1976, and the proceedings leading thereto 

### werevalid, and granted judgment tothat effect. It is from the findings, conclusions and judgment that this appeal is taken. This Court has repeatedly stated 

### it 

### willnot overturn findings of factand conclusions of law if supported by substantial evidence and by the law. Evidence willbe viewed inthe lightmost favorable to the prevailing party. Mont

# . Rule 52, M.R.Civ.P.; Luppold v. Lewis, (1977), I 563 P.2d 538, 34 St.Rep. 227; Morgen & Oswood Construction Mont

# . Co. v. Big Sky of Montana, Inc. (1976), 

## , 557 P.2d 1017, 33 St.Rep. 1121. The judgment of the ~istrict Court ispresumed tobe correct and willbe upheld unless clearly shown tobe erroneous; the burden of such showing is upon the appellant. Kamp v. FirstNational Bank and Trust Co., (1973), 161Mont. 103, 504 P.2d 987. We find the findings of fact and conclusions of 

### law

Of the ~i~trict Court are supported by substantial evidence-

### Appellants next claim the city and county voters were not given the choice between the established form of government and an alternative form asmandated by Art. XI, 

### Section 9(1), 1972 Montana Constitution. Instead, appellants allege the choice offered 

### was between two alternative forms of government. It 

### is obvious that ineach case the city and county study commissions presented charter forms of government which differed inbasic composition from any then existing form. The crucial question is

### whether the established (whether called "present" or "existing") forms of government

were offered to the voters atall. The District Court found they were. The ballots presented to the voters were in the following forms: Billings City Form Yellowstone County Form 

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### I .----,,,,,-- -----------JThe ballot form 

### was adopted so the voters would be clearly required tovote positively, that 

### is, vote for their choice 

### - and not against one of the other forms. That in the city election the voters adopted a new governmental form, while in the county voters retained the old form, 

### is the strongest evidence the voters were fully informed and not confused by the ballots nor the issues. But, appellants argue, the legislature in 1975 changed the form from "present" to "existing" local government by the adoption of Chapter 106, Laws 1975, entitled "AN ACT TO CREATE A NEW TITLE INTHE REVISED CODES OF MONTANA DEALING WITH LOCAL GOVERNMENTv. The title created by Chapter 106 is Title 47A of the Revised Codes of Montana. Appellants claim that section 47A-3-202 etseq., R.C.M. 1947, varied the forms of local government from those under Titles 11 and 16, R.C.M. 1947. Until 1975, local governments developed through many years of growth and statutory change. There was no single government code as such; rather, the various provisions under which local governments operated 

### were scattered throughout thewhole Montana Code, but were mainly found inTitles 11 and 16. Indeed, Chapter 106, Laws 1975, 

### isprefaced by this declaration: "WHEREAS, the existing 

### state statutes governing local government areconfused, contradictory, scattered and repetitive, resulting indelay or inaction inresponse topressing problems 

## * 

## * *." That was the situation when Title 47A 

### was enacted. The trial court found, and 

### we concur, that the relevant portions of Section 47A-3-202 et seq. contain the 

### same essential characteristics of form of government aswere presented under the former codification. Atmost, 

### it is a recodification. Therefore, 

### it follows that the constitutional

### mandates were observed and an alternative and the established (whether called "present"or "existing") forms were presented to the electors for their choice. 

# - Lastly, appellants argue that section 16-6115.1, 

### R.C.M. 1947 compels the selection of an "existing" form of government and thereby violates the 1972 Montana Constitution: Art. XI, 

### Sections 3(1) and 9(1), 1972 Montana Constitution: "Section 3(1). The legislature shall provide nethods for governing local government units and procedures for incorporating, classifying, merging, consolidating,and dissolving such units and altering their boundaries. The legislature shall provide such optional or alternative forms of government that each unit or combination of units may -

### adopt, amend, or abandon an optional or alternative form by a majority of those voting on the question." (Emphasisadded.) "Section 9(1)

# . The legislature shall,within four years of the ratification of this constitution, provide procedures requiring each local government unit or combination of units to review its structure and submit one alternative form of government to the qualified electors at the next general or special election." (Emphasisadded.) Art. 11, 

### Sections 1 and 2, 1972 Montana Constitution:

"Section 1. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole." "Section 2. The people have the exclusive right of governing themselves as a free, sovereign and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary." Appellants claim this is true because section 16-5115.1 states that unless the electors chose an alternative form of government, then their "existing" form of government shall be

as defined by section 16-5115.1. In this manner appellants claim the study commissions and the legislature locked the citizens into a situation which prevented them from exercising their rights. We preface discussion with some of the rules whichapply generally to

### all constitutional inquiry. In Board of Regents of Higher Education v. Judge, (1975), 168 Mont. 433, 443, 543 P.2d 1323, the Court held: 

## "'

## * 

## * * the Constitutionmust receive a broad and liberal interpretation consistent with the purpose 

### of the framers and the people inadopting 

### it, that 

### it may serve the needs of a growing state; the proper interpretation of any constitutional provision requires us toremember that it is a part of the organic law--organic not only in the sense that 

### it 

### is fundamental, but also inthe sense that 

### it is a living thing designed tomeet the needs of a progressive society, amid allthe detail changes towhich a progressive society 

### is subject.

## '" Nor can 

### we omit the wisdom of Justice Oliver Wendell Holmes when he wrote: 

## "*

## * * the interpretation of constitutional principles must not be too literal. We must remember that themachinery of government would not work if 

### it

### were not allowed a littleplay in

### its joints.* 

## * * " Bain Peanut Co. 

### v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 75 L.Ed. 482. In Martien v. Porter, (1923), 68 Mont. 450, 464, 219 P. 817, this Court held: "We enter upon a consideration of this case, bearing inmind a rule of construction dictated by reason and sanctioned by authority and long usage, thatwhenever an Act of the legislative assembly 

### is assailed asunconstitutional, the question presented to the court 

### is not whether 

### it 

### is possible to condemn but whether 

### it 

### is possible touphold. "In the early case of Brown v. Maryland, 12 Wheat 419, 6 L.Ed. 678, 

## * * * Chief Justice Marshall declared: "'It has been truly said, that the presumption 

### is infavor of every legislative Act, and that the whole burden of proof lies on him who declares 

### its unconstitutionality.' It has been invariably held by this court that the constitutionality of an Act of the legislature 

### will be held unless itsunconstitutionality appears beyond - a reasonable doubt." (Emphasis added.) These rules were recently restated by this Court but with a somewhat more restrictive burden for the proponent:"We cominence inquiry into the constitutional questions with thewell-settled rule that when the constitutionality of 

### a statute

### isunder scrutiny, the statute 

### ispresumed tobe constitutional and the party attacking 

### it has the burden of proving 

### its invalidity. 

## * 

# * * This presumption of validity applies to alllegislative enactments and 

### it is the duty of the court toresolve 

### all conceivable doubts infavor of validity whenever possible." (Emphasis added.) Reeves v. IlleElectric Co., (1976), Mont. I 551 P.2d 647, 650, 33 St.Rep. 542. 542. We have earlier in this opinion held sections 47A-3- 203, 

### et seq., tobe codifications of the various forms of local government utilizedunder old Titles 11 and 16, Revised Codes of Montana. We now hold section 16-5115.1, 

### 2.C.M. 1947, tobe of the same vein; 

### it merely 

### is the "road map" by which one finds his way into Title 47A. Nor does this holding contravene any rights of the citizens under Art. 11, Sections 1and 2, by telling them "this is it". Art. XI, Section 3(1) fixes responsibility upon the legislature to provide optional or alternative forms of government; certainly 

### it can be implied that this includes the power of defining whatever forms they were tomake such alternatives to. This adds to, rather than detracts from, the rights of the people tochoose their own governments since they now have a definition of the system. Moreover, the 1972Montana Constitution recognizes changing conditions in society requiring orderly and unhurried revision from 

### time to time of its governmental systems. That 

### is the real spiritof 

### it; to stiflethat spiritby too literally interpreting legislation thereunder is not inthe interests of society. Fundamental purposes must be the objective and reasonableness the watchword. It 

### is then tothe end result of 

### all of the proceedings of the legislature, study commissions and elections towhichwe must address ourselves. Through the legislative enactments, governments were reviewed and their forms defined; alternate forms were studied, and one alternate selected which seemed best suited to the study commissions and the people. The people were afforded reasonable choices between the established form and an alternative form and made their selections. Now to say the whole proceeding is unconstitutional because of some vague claim that theremight be some difference between the old and newer statutory definitions

or that those definitions coerce selection, leads to an absurd result. Certainly constitutional construction should not reach such a result. State ex rel. Ronish v. School Dist. No. 1of Fergus County, (1960), 136 Mont. 453, 348

We hold the classification of the existing form of government under section 16-5515.1, R.C.M. 1947, not tobe an imposition of any particular form of government upon a local body, but instead tobe compliance with the constitutional mandates of Art. X We affirm the decision

Hon. Robert M. Holter, District ,/' Judge, sitting inplace of Mr. .I/ Justice Frank I. Haswell.
/' 

### i We conc : 

# .d,/f%i,

/f$d. Jack D. ~hanstrom,sitting n place of Mr. Justice John C. Harrison 

# 'P